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POLITICO 44

Elena Kagan’s nomination to the Supreme Court is remarkable in that it is unremarkable.

Few have given the idea of another woman serving on the nation’s highest court a second thought. That women have the same opportunity as men when it comes to federal judgeships is now accepted.

It was not always thus.

Only seven women were confirmed as federal judges, on any level, in the first 181 years of our nation’s history. The first woman took a seat on the Supreme Court just 29 years ago.

President Franklin D. Roosevelt nominated the first female federal judge: Florence Ellinwood Allen was confirmed for the 6th Circuit Court of Appeals by the Senate in 1934.

After I graduated from law school in 1970, I clerked for federal district Judge Sarah T. Hughes in northern Texas. President John. F. Kennedy had nominated her in 1962.

Hughes was just the third woman confirmed as a federal judge in U.S. history.

She was clearly a woman ahead of her time.

When I clerked for Judge Hughes, she was already in her 70s but still in step with the women’s liberation movement, which was really taking off then. Whenever local Texas TV stations wanted someone to talk about the women’s movement, they called this outspoken, 5-foot-tall, wrinkled federal judge rather than local female activists in their 20s or 30s. Hughes always gave stations something quotable.

She did more than just talk. She and some of her buddies would regularly buy a few shares of stock in local companies. Then they could attend annual shareholders meetings — and raise Cain about why the firms didn’t hire and promote more women.

Hughes always encouraged her law clerks — male and female — to get involved in politics after they finished their tour with her. In 1978, she took great pride when I was elected to the U.S. House of Representatives — an office she had unsuccessfully sought in 1946.

In her legal career, Hughes had faced obstacles typical among women of her day. She had graduated from the George Washington University Law School in the 1920s and moved to Dallas with her husband. But the local law firms refused to hire a woman.

Finally, another lawyer gave her a desk in his office. Not to be denied, she won election first to the Texas Legislature, then as a state district judge.

Hughes was then caught in a vicious patronage fight between Texas Sen. Ralph Yarborough and Vice President Lyndon B. Johnson. Attorney General Robert F. Kennedy also tried to block her confirmation on the basis of age — she was 64 at the time.

But Hughes ultimately won the necessary political approval when she persuaded another influential Texan, House Speaker Sam Rayburn, to weigh in on her behalf.

Rayburn told the attorney general that an important piece of President Kennedy’s legislative agenda wouldn’t get a House vote until Hughes’s name was sent to the Senate for confirmation. Suddenly, the attorney general saw the wisdom of her nomination.

Years later, Hughes wrote the lower court decision in Roe v. Wade, the case that established a woman’s right to choose an abortion.

Now, Kagan’s nomination to the Supreme Court is unremarkable.

But it sure took us a long time to get here.

Martin Frost, a lawyer, represented the Dallas-Fort Worth area in Congress from 1979 to 2005.